Draft Investigatory Powers Bill Contents

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4Authorisation regimes

Overview

409.This Chapter examines first some of the principles underpinning the more stringent authorisation processes set out in the draft Bill and then addresses the authorisation regimes for each of the capabilities. It also covers issues of extraterritoriality and addresses the provisions regarding privileged communications relating to lawyers, journalists and parliamentarians contained within the draft Bill.

Overarching issues

410.The draft Bill sets out the process of authorisation for each of the capabilities which it legislates for. The process of authorisation for communications data remains largely unchanged and will be dealt with in the specific section below. The draft Bill introduces a new system of authorisation for targeted interception, targeted equipment interference, and all types of bulk warrants. While there are specific issues that relate to the authorisation process for each type of warrant, which will be dealt with below, this section will deal with issues common to the authorisation of all of these warrants which are subject to the more stringent authorisation procedure.

Judicial Authorisation

411.The draft Bill introduces an extra layer of judicial authorisation for powers that have previously been subject to ministerial authorisation only. This procedure, described by the Government as a “double lock”322 applies to warrants for targeted interception, targeted equipment interference, and all forms of bulk warrants.

412.Initial political reaction to this announcement was positive, with the Shadow Home Secretary acknowledging that the draft Bill “has brought forward much stronger safeguards, particularly in the crucial area of judicial authorisation.”323

413.Many witnesses were also positive about the decision to introduce a judicial element to the authorisation process. Peter Gill, for example, said:

“Clearly the draft bill is an improvement on the current authorisation situation because it involves judges in the approval of warrant applications and thus adds a judicial dimension to the ‘political’ decision made by ministers. This is appropriate because the determination as to whether an application passes the triple test of legality, necessity and proportionality as required by the Human Rights Act is, finally, a legal question.”324

414.Submissions to the Committee fell into three camps on this issue: those who thought authorisation should be undertaken by Ministers only; those who thought authorisation should be undertaken by judges only; and those who were content with a mixed approach (as taken by the draft Bill), although some witnesses in this group were concerned by the judicial review restriction (which we address below).

415.Both Lord Carlile of Berriew CBE QC and the Rt Hon Owen Paterson MP made the case for authorisation decisions to remain with ministers only. Lord Carlile argued that ministers are accountable for their actions in a way that judges cannot be:

“Ministers are accountable to Parliament. This includes accountability to Select Committees, to the relevant House, and ultimately to their electorate. Ministers seen to be inefficient or troublesome can be reshuffled at short or even no notice. It is not the normal or even acceptable role of a judge to make executive decisions. They are not elected, and rarely removed.”325

416.Similarly, Mr Paterson referred to the separation of powers in his evidence to the Committee:

“Go back to Montesquieu and the separation of powers. Their skill is interpreting law or, here, interpreting the manner in which a law has been put into action by an Executive. I feel very strongly that these are executive decisions. They are operational decisions and must be made by a democratically elected Minister, accountable to Members of Parliament.”326

417.The Rt Hon Lord Blunkett believed “that we need to find a way of ensuring that a tandem process can work, simply because there is an atmosphere now, driven by those who suspect the state of all sorts of things, that makes it very difficult to resile from what has been put forward.”327

418.The Committee also received submissions which argued instead that all or some categories of warrants should be authorised by judges without any element of ministerial decision-making.328 Big Brother Watch questioned the relevance of the accountability argument on the basis that “no Secretary of State has ever explained their actions in relation to a warrant before Parliament, posing the question of strength of democratic accountability”.329

419.We are aware that particular sensitivities around these issues may apply in Northern Ireland. The Government will need to reflect on these sensitivities as this legislation progresses.

Box 3: International comparisons

The capacity of police and security services to access communications and, in particular, the degree of judicial authorisation involved varies significantly between nations and, within nations, between different types of information.

The Committee was grateful to receive evidence from Sir Bruce Robertson, New Zealand Commissioner of Security Warrants, whose role closely resembles that of the Judicial Commissioner proposed in the draft Bill in terms of authorisation. He explained that, with respect to the interception of communications, “when there is a desire on the part of either the security service or the [The Government Communications Security Bureau (GCSB)] to get authorisation, they make an application to the relevant Minister but the Act provides that the relevant Minister can grant an authorisation only if I concur with the granting of it. It is an entirely dual operation. From my experience of three years and the experience of my predecessor, who was in office for almost 14 years, this appears to provide a sensible and operational joint protective measure.”330

At one end of the spectrum are Australia and France. In Australia, no judicial authorisation is required for the police and security services to access information. Only where access is sought to a journalist’s metadata is a warrant required. Nor is any judicial oversight or authorisation required in France. The Prime Minister can authorise data interception on the basis of some very broad grounds such as the protection of major foreign policy, economic, and scientific interests or the prevention from ‘organised delinquency’. Before authorisation can be given, the National Committee of Intelligence Techniques Control must be consulted, but its decisions are only advisory and not binding on the Prime Minister.

In other countries some form of judicial authorisation is more common. To intercept communications, the Canadian police must apply to a superior court for a warrant, which would also need to be counter-signed by the relevant provincial Attorney-General. Applications for warrants must specify the reason for the application. There is a different authorisation procedure for the Canadian security services who must apply to a member of a panel of Federal Court judges with security clearance.

The situation relating to metadata in Canada is rather less clear. It is the subject of ongoing political controversy and is evolving rapidly. The Criminal Code prohibits the interception of private communications without a warrant, but as the security services have not regarded metadata as “private” they have seemingly collected and used it with limited constraint: in evidence to the Standing Senate Committee on National Security and Defence, the Prime Minister’s National Security Advisor stated that metadata “does not represent a compromise of private communications by Canadians. It is data about data, so it is well within the legal parameters of [Communications Security Establishment Canada’s (CSEC)] operations”.

In New Zealand, as in Canada, the law relating to the collection and retention of metadata has been rather less developed, and not subject to the same sorts of controls. In both Canada and New Zealand, the warrant system only relates to domestic interception and security agencies are free to conduct overseas surveillance without further authorisation. In Canada in particular, there have been concerns about the extent to which Canadians have been ‘inadvertently’ included in overseas data gathering.

In the USA, the Freedom Act 2015 provided some restrictions on the powers of surveillance that the National Security Agency had had under the Patriot Act 2015. CSPs are now required to store telephony metadata which the NSA can apply for a warrant to access where they were previously required to hand the information directly to the NSA.

Source: House of Commons Scrutiny Unit

420.David Anderson QC pointed out that, at least in relation to police warrants, it is questionable whether there needs to be a ministerial element to the authorisation process:

“I recommended a double lock myself in relation to foreign policy and defence warrants. But in relation to police warrants, which are 70% of the whole and therefore represent 70% of those 2,300 warrants that the Home Secretary authorises every year, it seems to me that one could do without the politician or the Minister and go straight to the judicial commissioner.”331

This suggestion would help to allay the concerns of those who believe that ministerial involvement in authorising all warrants may become unsustainable as the number of warrants continues to rise.

421.The Committee is satisfied that a case has been made for having a ‘double-lock’ authorisation for targeted interception, targeted equipment interference, and bulk warrants.

Judicial Review

422.A large number of witnesses questioned whether the intended “double-lock” system is reflected accurately in the wording of relevant clauses. The draft Bill specifies that when making the authorisation decision “the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review.”332

423.The Committee received numerous submissions on the issue of judicial review principles and how the wording of these clauses affect the tests that the judicial commissioners will be applying when deciding whether to authorise a warrant. Many of the submissions raised concerns about the inclusion of judicial review principles for various reasons.333

424.Some witnesses thought that the judicial review test was too narrow to allow the judge to make an authorisation based on the merits of the case. Article 19 wrote that:

“the usual standard applied is Wednesbury unreasonableness, which means that the judge cannot disturb the Secretary of State’s conclusions as to necessity and proportionality unless he or she is satisfied that the decision was so unreasonable that no reasonable person could have arrived at such a decision. This is an extraordinarily low threshold for the Secretary of State to have to meet, meaning that it is highly unlikely that a judge would ever reverse the Secretary of State’s decision.”334

This led to some concern from witnesses that the involvement of judicial commissioners in these authorisations would be a “rubber-stamping” exercise.

425.We also heard evidence from a panel of specialist lawyers who were largely in agreement about the effect of imposing judicial review rules. Matthew Ryder QC said “In a judicial review situation, the judge is essentially bound by decisions and assessments of facts that have been made by the Secretary of State”.335

426.Others challenged this position, contending that the judicial review test provides for a thorough review based on the merits of the case. Dr Tom Hickman said,

“the fact that the [judicial commissioners (JCs)] will be mandated to apply judicial review principles does not mean that they will apply a Wednesbury review. It is trite law that in human rights cases courts will decide for themselves whether a measure is necessary and proportionate and these are the judicial review principles that judges will surely adopt (e.g. Miss Behavin’ Ltd [2007] 1 WLR 1420).”336

427.The Rt Hon Lord Judge and the Rt Hon Sir Stanley Burnton agreed with this assessment. Lord Judge said “Judicial review used to be Wednesbury unreasonable mad. We would call it Wednesbury unreasonable, meaning only an idiot could have reached this decision. Nowadays, judicial review is less stringent than that.”337 In the same vein, Sir Stanley Burnton said that “you can forget about Wednesbury unreasonableness in this context. Interestingly, proportionality and necessity are tests that we have imported from Europe, and the proponents of the Bill are clearly happy to adopt them in this context.”338

428.In his oral evidence to the Committee, Paul Lincoln, Director, National Security (Office for Security and Counter-Terrorism) at the Home Office, said in relation to judicial authorisation of warrants: “The specifics here are that two things will be critical: first, that they decide in the first place that the action is rational and lawful; and, secondly, that it is necessary and proportionate. Those are exactly the same tests as the ones the Secretary of State will be looking at.”339 The Home Secretary in her evidence to the Committee said that the purpose of judicial review principles was to accord judges “a degree of flexibility as to how they approach particular cases depending on the impact on the individual of what it is they are looking at.” The Home Secretary also made clear that “they are not re-taking the decision. They are looking to see whether the original decision was flawed.”340

429.A further issue for the authorisation procedure as set out in the draft Bill is the absence of any adversarial process which is usually a feature of judicial review. As Matthew Ryder QC told the Committee:

“normally in judicial review, there is an element of an adversarial process. In other words, the judge is assessing it with somebody making representations in relation to the other side. There will be no adversarial process built into this, the way it stands at the moment. You will have a judicial review, but no one putting forward the argument to the judge in a different situation. Now, that is not unheard of; you have that in other situations, but not in relation to a judicial review situation.”341

430.Professor Christopher Forsyth mentioned the three grounds of procedural irregularity, irrationality and illegality as the basic principles of judicial review and in doing so highlighted that:

“there is another consideration here that suggests that judicial review principles are, in a way, unsuitable or would have to be thought about a bit more carefully … Procedural irregularity is, of course, the principle that people should be heard and given the opportunity to make their case before a decision adverse to their interests is taken. That, of course, cannot happen in the kind of context that we are talking about … It means that a whole slice of judicial review principles has been discarded for the purposes of this exercise.”342

431.In support of this argument, the News Media Association told us that “while the applicant can challenge a refusal, the oblivious media organisation, journalist or indeed any other potential subject affected, cannot contest the application, the grant of consent, or review of a refusal, or even make a retrospective complaint” owing to the ban on disclosure of the existence of these warrants.343 This point is discussed in more detail at paras 539–556 which address issues relating to journalistic privilege.

432.As a result, some witnesses344 suggested that the Bill should make provisions for there to be special counsels or advocates to the Judicial Commissioners in order to “enable arguments to be developed as to why a warrant request goes too far or is inadequately supported etc.”345

433.The Committee is satisfied with the wording in the Bill and believes that the judicial review principles will afford the Judicial Commissioners a degree of flexibility, as outlined by the Home Secretary.

Targeted Interception

434.Targeted interception warrants are subject to the new ‘double-lock’ procedure. Previously they have been authorised solely by the Secretary of State.

Modification of warrants

435.Clause 26 of the draft Bill sets out the process for modifying a targeted interception warrant. It distinguishes between a major modification which must be authorised by a minister or senior official, and a minor modification which can be made by the person to whom the warrant is addressed, or another senior person in that public authority. There is no requirement for either type of modification to be authorised by a Judicial Commissioner.

436.Witnesses expressed concerns about the modification process for targeted interception warrants and believe that it would undermine the ‘double-lock’ authorisation process introduced in the Bill.346 The Open Rights Group wrote: “The Secretary of State and senior officials would have very broad powers to change names, premises, or even to add multiple names without requirement for judicial commissioner approval. Such major modifications to a warrant would appear to deserve a similar level of scrutiny as the original authorisations.”347

437.The Home Secretary emphasised to the Committee that “the necessity and proportionality of a warrant against a particular individual will have been determined by the double-lock authorisation process. Anything that was in that order would not count as a modification. Anything that required a warrant against a particular individual would require the double-lock authorisation process.”348

438.The Committee believes that this response fails to recognise that a modification, as currently worded in the draft Bill, might include adding a whole new set of people or premises to an existing warrant. The warrant could therefore be changed in a substantial way without any judicial oversight.

439.The Committee recommends that major modifications for targeted interception warrants, as defined in the draft Bill, should also be authorised by a Judicial Commissioner. (Recommendation 32)

Authorising interception in Scottish psychiatric hospitals

440.The draft Bill sets out the authorisation procedures for interception in psychiatric hospitals in Clause 38. The Mental Welfare Commission for Scotland drew the Committee’s attention to an issue regarding the existing statutory framework for interception in Scottish psychiatric hospitals:

“We are concerned that this does not properly take account of the statutory framework within which security measures, including interception of postal correspondence and telephone calls, operate in Scottish psychiatric hospitals. This is set out in sections 281 to 286 of the Mental Health (Care and Treatment) (Scotland) Act 2003.”349

441.The Law Society of Scotland also expressed concern regarding this apparent oversight and suggested “that the provisions of Clause 38 should expressly provide that any action which is authorised under the 2003 Act is lawful.”350

442.Furthermore, both witnesses argued that the Government should avoid creating two overlapping regimes. The Mental Welfare Commission for Scotland said:

“unless there is some clear justification, the Bill should not add another route to authorising interception in a psychiatric hospital when there is already a statutory regime covering this. That is likely to create confusion as to how the two regimes interact.

The approach of the 2003 Act is preferable, as much of the detail is in secondary legislation rather than Ministerial direction, so is subject to a greater degree of Parliamentary scrutiny. If there is concern that there are gaps in the framework of the 2003 Act, these gaps should be addressed within that framework, rather than create two overlapping regimes.”351

443.The omission of a reference to the Mental Health (Care and Treatment) (Scotland) Act appears to us to be an oversight, which we agree could lead to the creation of conflicting authorisation regimes for the use of interception in psychiatric hospitals in Scotland. The Committee recommends that this apparent oversight be addressed in the revised Bill. (Recommendation 33)

444.The Committee was provided with a table of investigatory powers in other legislation by the Home Office.352 As the Mental Health (Care and Treatment) (Scotland) Act 2003 was missed off this table, we are concerned that there may be other omissions. We recommend that the Home Office should further review its list of investigatory powers in other legislation to ensure that nothing else has been overlooked. (Recommendation 34)

Targeted Equipment Interference

445.The draft Bill also brings targeted equipment interference warrants under the ‘double-lock’ authorisation regime.

Differences in authorisation and modification for law enforcement and intelligence agencies

446.The draft Bill differentiates between law enforcement and intelligence agencies in respect of the process for both authorising and modifying targeted equipment interference warrants. Clause 84 relates to warrants applied for by the security and intelligence agencies and says that they must be authorised by the Secretary of State and a Judicial Commissioner. In comparison, Clause 89 provides for law enforcement chiefs and a Judicial Commissioner to authorise equipment interference warrants for law enforcement officers.

447.Additionally, Clause 96 sets out the procedure for modifying warrants and says that modifications for law enforcement warrants must be authorised by a Judicial Commissioner but this requirement is not present for the intelligence agencies.

448.The Interception of Communications Commissioner’s Office said that “the different procedures are confusing and it is not clear on what basis they are justified”353 and the Information Commissioner’s Office recommended that “there should be a consistent and appropriately robust approach adopted.”354

449.The Home Secretary explained the reasoning for this approach:

“With regard to modifications to the different warrants from either the agencies or from law enforcement, modifications to the agency warrants require approval from the warrant issuer, which is the Secretary of State or designated official, so that they are being looked at independently from the agency. Where there is a modification to law enforcement … the issuing authority is the internal law enforcement chief. To give the independence, that is why we have instructed that the Judicial Commissioner should also authorise modifications for law enforcement equipment interference warrants. It is about getting that degree of independence but it can be achieved in different ways.”355

450.The Committee believes that the differential approach to authorisations and modifications for targeted equipment interference warrants applied to the security and intelligence agencies and law enforcement agencies is confusing and unjustified. We therefore recommend that the approach to targeted equipment interference warrants should be standardised and that all modifications should be subject to judicial authorisation. (Recommendation 35)

Discrepancy between draft Bill and Code of Practice

451.In relation to both targeted and bulk equipment interference, the Home Office published a draft Code of Practice alongside the draft Bill.356 Witnesses suggested that there was some discrepancy between the safeguards set out in the Code of Practice and the actual requirements in the draft Bill. Open Intelligence explained:

“The requirements set out for both targeted interference in Clause 93 and bulk interference in Clause 140 fall short of the guidelines set out for applications for warrants in 4.6 of the Draft Equipment Interference Code of Practice [DECIP]. Clauses 93 and 140 should also set out as in 4.6 of the DEICP requirements to contain the nature and extent of the proposed interference, details of potential collateral intrusion, what the operation is expected to deliver, details of offences suspected, action necessary to install, modify or remove software. In the case of bulk equipment interference an assessment of potential damage and vulnerabilities that may be incurred should be included.”357

452.The Committee is satisfied that the safeguards for equipment interference are adequately set out in the Code of Practice and do not need to also be reflected on the face of the Bill.

Issues common to targeted interception and targeted equipment interference warrants

Urgent Warrants

453.The draft Bill makes provisions for the Secretary of State to authorise a targeted interception or targeted equipment interference warrant without judicial authorisation if the minister considers that there is an “urgent need to issue it”.358 The warrant must then be reviewed by a Judicial Commissioner within five working days. It ceases to have effect if it is not authorised by the Judicial Commissioner during that period. Witnesses raised concerns about this provision, in particular with regards to the protection of human rights, the time allowed for the Judicial Commissioner to review the warrant, and the lack of a definition of ‘urgent’.

454.The News Media Association suggested that the process for urgent warrants allows “the ‘so called double lock’ to be bypassed, even where it applies, so that the powers can be used and damage done long before the review deadline and any possible revoke.”359 Access Now said that, as a result, “this process fails to provide sufficient human rights protections or adequate oversight.”360

455. Furthermore, numerous submissions contended that the five day review period for urgent warrants was excessive and unjustified.361 The Bar Council told the Committee that “High Court Judges frequently listen to and grant orders made on urgent application. Provided sufficient Commissioners are appointed there is no reason why they would not be at least as available to make a decision as the Secretary of State.”362

456.While the Committee accepts that there will be some exceptionally urgent circumstances in which a warrant will need to be authorised immediately, it is not clear why the period for the Judicial Commissioner to review and authorise the warrant should be as long as five working days.

457.Witnesses emphasised that “it is easy to see how [the five day] provision may become a loophole ripe for excess and/or abuse”.363 The Committee therefore recommends that the period in which urgent warrants must be reviewed by a Judicial Commissioner should be shortened significantly. We suggest that they must be reviewed within 24 hours of their signature by the Secretary of State. (Recommendation 36)

458.Others focused on the lack of definition of the word ‘urgent’. As a result the urgency procedure could “be interpreted to encompass a wide array of circumstances”.364 Witnesses suggested that “clarity on this term—which other countries may seek to emulate and even abuse—is important.”365 We agree that greater clarity on the term “urgent” is required.

459.The Committee received a letter from John Hayes MP, Minister of State for Security, who sought to clarify this issue. He wrote, “In practice, a warrant is only treated as urgent if there is an immediate and limited window of opportunity to achieve the aim of the warrant. Typically the urgency provision is used in relation to a fleeting intelligence or evidence-gathering opportunity or an imminent threat to life or serious harm.”366

460.The Committee recommends the inclusion of a definition of the word “urgent” for the purposes of authorising urgent warrants. (Recommendation 37)

Thematic Warrants

461.The Committee heard some concerns about the potentially broad subject matter of targeted interception and targeted equipment interference warrants. Clause 13(2) relating to targeted interception warrants states that “a targeted interception warrant may relate to a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”. Clause 83 relating to targeted equipment interference warrants is similarly broad. It provides that such warrants may relate to “equipment in a particular location”, “equipment in more than one location”, or “equipment that is being, or may be being used, for the purposes of a particular activity or activities of a particular description.”

462.There is therefore the potential for these clauses to be interpreted as authorising ‘thematic warrants’, as Matthew Ryder QC suggested, “warrants based not on the identity of known individuals, or the identity of a known group of individuals, but on a theme relating to general activity by persons unknown (e.g. all persons within a city who may be committing activity of a certain description). Such an interpretation transforms what are presented as domestic ‘targeted’ interception warrants into warrants that permit general surveillance in the hope of determining who, amongst potentially millions of people, might be engaged in the activity in question.”367

463.Witnesses expressed concerns about the contexts in which these powers could be deployed. The Network for Police Monitoring highlighted the possibility that “in the context of protest policing, this extends the use of surveillance activities to any individual associated with a protest groups… Not only does the surveillance extend to individuals themselves engaging in (possibly low-level) criminal activity, it arbitrarily extends it to all individuals believed to share a ‘common purpose’ with them.”368

464.The Center for Democracy and Technology went further and suggested that:

“such language does not, by its terms, exclude the possibility that everyone who belongs to a certain trade union, political party or book club; visits a certain shop; attends (or has friends or family members who attend) a certain house of worship; subscribes to a certain publication; participates in a lawful and peaceful demonstration; celebrates or may celebrate a certain religious or national holiday; or uses a particular e-mail or instant messaging service may experience very serious privacy intrusions pursuant to a ‘targeted’ warrant in a manner that cannot reasonably be regarded as foreseeable.”369

465.Additionally, some witnesses suggested that the scope of these warrants as proposed in the draft Bill could be in violation of Article 8, especially in light of the ECtHR judgement in Zakharov v Russia. Liberty told us that, where the ECtHR “found Russia’s interception scheme in violation of Article 8 of the Convention, the Court cited the fact that Russian ‘courts sometimes grant interception authorisations which do not mention a specific person or telephone number to be tapped, but authorise interception of all telephone communications in the area where a criminal offence has been committed.’ While thematic warrants do not relate to geographical location, they are sufficiently broad to violate Article 8.”370

466.The Secretary of State explained in her evidence to the Committee that “it will not be possible to use a thematic warrant against a very large group of people. The purpose of a thematic warrant is, for example, circumstances in which perhaps somebody has been kidnapped or there is a threat to life, where only certain information is available, and it is necessary because of the pace at which something is developing to identify the group of people who are involved with that particular criminal activity as being within the thematic warant.”371

467.The Home Secretary’s statement is helpful in that it clarifies some of the legitimate uses for such a warrant. But she did not acknowledge that the wording in the draft Bill would allow a much broader interpretation which could lead to some of the activities identified by the Center for Democracy and Technology. The Committee agrees that the current wording of the provisions for targeted interception and targeted equipment interference warrants is too broad.

468.The Committee recommends that the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants concerning a very large number of people. (Recommendation 38)

Communications Data and Internet Connection Records

Authorisation for Targeted Communications Data and ICRs

469.Communications Data is considered by the draft Bill to be less intrusive than the other investigatory powers. As a result, the authorisation process is less burdensome and is not subject to the ‘double-lock’. An investigator who wants access to communications data, including ICRs, must consult with a Single Point of Contact (SPoC) who can advise the applicant on relevant aspects of the application before it is made to a senior designated officer. It is then up to the senior designated officer to decide whether to authorise the request. Requests from a local authority (who may apply for communications data but not ICRs) are sent to a magistrate for authorisation instead of a senior designated officer, and requests to determine a journalistic source are sent to a Judicial Commissioner for authorisation.

470.As has been detailed above in the Capabilities chapter, the less intrusive nature of data communications was called into question by a number of witnesses. Accordingly, many are concerned that the authorisation process for communications data continues to be at a lower level than other investigatory powers and have suggested submitting applications for communications data to the ‘double-lock’ procedure.372 Scottish PEN said:

“Requiring public bodies to seek approval through a communications data acquisition notice and not a warrant signed by a judge removes a much-needed level of oversight to ensure that they are independently judged to be acting in a “necessary and proportionate” manner. While the designated person is required to be independent from the investigative team requesting the notice, the fact that they are representing the same body raises key questions as to whether this amounts to independent scrutiny.”373

471.The Committee also received a number of submissions commending the existing process for authorisation which the draft Bill replicates. EE told us “the use of Single Points of Contacts (SPOCs) is a strong, transparent, and stringent process. A SPoC must always be engaged for the acquisition of CD and is specially trained and accredited in the use of CD and will advise upon the appropriate use of all available CD”374 and LINX welcomed “the continued commitment to oversight by Single Points of Contact, which has been one of the more successful innovations introduced in the implementation of RIPA.”375

472.Additionally, the Committee was able to visit the Metropolitan Police SPoCs and ask them questions about the work they do. The Committee found this helpful in understanding the process and were impressed by the knowledge and commitment of the SPoCs.

473.Given the high number of requests for communications data made each day, the Committee accepts that it would not be feasible to require judicial authorisation for all of them. David Anderson QC in his oral evidence376 to the Committee referred to some examples he suggested in A Question of Trust which might benefit from an extra layer of authorisation. These were:

• “communications data for the purpose of determining matters that are privileged or confidential”
• Communications data relating “to persons who handle privileged or confidential information (doctors, lawyers, journalists, MP, etc.)”
• “Where a novel or contentious request is made for communications data.”377

474.The Committee is satisfied that the proposed authorisation process for communications data is appropriate but recommends that extra protections for privileged and confidential communications should be applied in the same way as is proposed for journalists in Clause 61. (Recommendation 39)

Local Authority authorisation

475.The draft Bill maintains the current authorisation procedure for local authorities, which was introduced in 2012, requiring them to seek authorisation from a magistrate for access to communications data. The draft Bill also precludes local authority access to ICRs.

476.The LGA and NAFN told us that “in practice the process of seeking judicial approval can be slow and inefficient” and that this “acts as a deterrent to councils seeking access to communications data when there is a legitimate basis for them to do so.”378 The IOCCO has also previously commented that 40% of the public authorities that have powers to acquire communications data have never used their powers.379

477.The LGA and NAFN suggested that “councils are able to apply for and be granted magistrates approval electronically” and that “Central government should also consider the case for routing all such applications through a small number of magistrates’ courts with direct links to the National Anti-Fraud Network. By creating centres of expertise, this would ensure that this safeguard is applied consistently and robustly.”380 These sentiments are echoed in the submission by Trading Standards North West.381

478.The Committee understands the value of local authorities being able to access communications data in limited circumstances and is content with the proposed authorisation process.

Serious Fraud Office authorisation

479.The Committee has also received a submission from the Serious Fraud Office setting out some concerns regarding Clause 63(5) of the draft Bill which gives the Secretary of State authority to direct that agencies enter collaboration agreements. They are concerned that this will be used to require them to share a SPoC with other public authorities. They told us that “this is not the preferred authorisation process for the SFO because of the need to protect confidentiality and operational security of our investigations.”382

Emergency authorisation procedures

480.In the interests of national security, or if there is an imminent threat to life, Clauses 47(2) and 60(2) allow for some changes to the communications data authorisation process. They remove the requirement for the designated person to be independent from the investigation when approving the acquisition or disclosure of communications data and they remove the requirement for the public authority to consult with a SPoC when acquiring communications data. The Interception of Communications Commissioner’s Office questioned the need for the provision in Clause 47 and said that it “dilutes the independence safeguard recently introduced into the March 2015 Communications Data Code of Practice (as a consequence of the Digital Rights Ireland case which resulted in a ruling by the ECJ).”383

481.Virgin Media expressed some concerns about bypassing SPoCs:

“This is not necessary or good practice. We believe that emergencies can be dealt with through LEA co-operation agreements to share the use of SPOCs to ensure 24x7 cover. If a police officer is able to bypass a SPOC, then all the controls set up to: (a) ensure an appropriate request is made in the manner most likely to result in disclosure of relevant data; and (b) ensure data is only disclosed to authorised individuals; will also be bypassed. We believe this is a very important safeguard, and its removal creates an unnecessary security risk.”384

482.The Committee recommends the removal of emergency procedures for communications data so that the Single Point of Contact process can never be bypassed. (Recommendation 40)

Powers to modify Clause 54 and Schedule 4

483.The Committee is grateful to the House of Lords Delegated Powers and Regulatory Reform Committee for providing a detailed memorandum on the various delegated powers within the draft Bill. As highlighted in their memorandum:

“Clause 55(1) confers power on the Secretary of State by regulations to amend Clause 54 and Schedule 4. The power includes a power to add or remove a public authority from the list in Schedule 4 and to modify an entry about the rank etc. of a designated senior officer. The regulations can also impose or remove restrictions on the authorisations which a particular kind of designated senior officer may give, and impose or remove restrictions on the circumstances or purposes for which authorisations may be given.”385

484.The DPRRC accepted the justification for this power and welcomed the enhanced affirmative procedure that the draft Bill applies to it. This is in contrast to the ordinary affirmative procedure that was applied under RIPA.

485.The Committee agrees with the conclusions of the DPRRC on the enhanced affirmative procedure for amendments to Clause 54 and Schedule 4. We join them in welcoming the strengthening of scrutiny procedures in this area of the draft Bill.

486.The DPRRC pointed out that “Clause 56(1) sets out circumstances in which the negative rather than the enhanced affirmative procedure will apply to regulations under Clause 55(1). These are where the regulations only have effect:

• to remove a public authority from the list in Column 1 of the table in Schedule 4 and make consequential modifications; or
• to modify the list of ranks, offices etc. that must be held by a designated senior officer as set out in Column 2 of that table.”386

487.While the DPRRC was satisfied that the negative procedure was appropriate in relation to the first bullet point, they were not “convinced that the negative procedure affords the appropriate level of scrutiny in all cases where it is proposed to modify Column 2 of the table in Schedule 4. We consider the requirement for an authorisation to be given at a high level within an organisation offers an important protection against an inappropriate use of the powers conferred by Part 3. Accordingly, we think that any regulations modifying Column 2 which have the effect of lowering the level at which an authorisation has to be given should be subject to at least the affirmative procedure.”387

488.The same conclusion was reached regarding Clause 57(4) which confers a power on the Secretary of State by regulations to amend subsection (2) and is subject to the negative procedure.

489.The Committee agrees with the recommendation of the DPRRC on modifications to the list of ranks and offices which must be held by a designated senior officer. We recommend that Clause 56(1) and Clause 57(4) should be amended accordingly. (Recommendation 41)

Bulk powers warrants

Necessity and Proportionality test

490.Bulk interception warrants, bulk acquisition warrants, and bulk equipment interference warrants are all subject to the ‘double-lock’ authorisation process.

491.Submissions regarding authorisation for these bulk powers focused on the difficulty that the Judicial Commissioners could have when assessing the necessity and proportionality of the proposed actions.388 As JUSTICE explained, “the breadth of application of some of the powers concerned may make it particularly difficult to assess necessity and proportionality in any meaningful way, undermining the ability of any authorising body, including a Judicial Commissioner to act as a significant safeguard against abuse.”389

492.We note that judicial commissioners will have access to all the material that the Secretary of State will have when making their decision and will be able to question the applicants from the security and intelligence agencies on the details to satisfy their understanding before making a judgement.

493.Subject to the views of the Intelligence and Security Committee regarding bulk powers, we are confident that the Judicial Commissioners would be able to assess the necessity and proportionality criteria in relation to bulk warrants.

Bulk personal datasets

494.Part 7 of the draft Bill sets out provisions relating to the acquisition, examination and retention on bulk personal datasets. It allows the acquisition of specific datasets, as well as classes of datasets, when they have been authorised under the ‘double-lock’ procedure. Clause 154(6) also allows a warrant to authorise the obtaining, retention and examination of a dataset which does not yet exist (this is termed a “replacement dataset”).

495.As well as concerns about the types of datasets to which the Agencies will have access, witnesses also criticised the authorisation process for class BPDs. Dr Tom Hickman said: “class authorisation is inadequate. It is difficult to understand why the datasets cannot be listed expressly in any warrants so that there is clear judicial sight of what data sets are being held and used. If there is to be proper democratic licence for these activities, there needs, at a minimum, to be greater visibility as to the breadth of the power, and full judicial approval.”390

496.Concerns were also raised regarding replacement datasets. Eric King suggested that “Bulk Personal Dataset warrants must describe specific individual datasets. Provisions in warrantry as per section 152(6) to allow warrants to authorise the obtaining, retention and examination of “replacement datasets” that do not exist at the time of the issue of the warrant should be removed.”391

497.The Committee recommends that authorisations for bulk personal datasets should be required to be specific and provisions for class authorisations should be removed from the Bill. The provision relating to replacement datasets (Clause 154(6)) should also be removed. (Recommendation 42)

Technical Capability notices and National Security notices

Process for issuing these notices

498.The draft Bill enables the Secretary of State to serve these notices on a communications service provider in order to assist intelligence agencies or law enforcement in their work.392

499.Submissions from Facebook Inc., Google Inc., Microsoft Corp., Twitter Inc., Yahoo Inc. and Virgin Media questioned why these notices were not subject to judicial authorisation before being served on communications service providers.393 Human Rights Watch made the case for enhanced authorisation processes for these notices: “These broadly and ill-defined powers raise novel legal and technical questions that should be subject to substantive as well as procedural prior review by an independent judge, along with scrutiny by other oversight bodies.”394

500.EE, another communications service provider, welcomed the process set out in the draft Bill for the issuing of these notices:

“we welcome the fact that before a Notice can be served upon a telecommunications operator (in order to develop a technical capability to support EI), the Secretary of State must first consult with the telecommunications operator to assess, amongst other things, proportionality, technical feasibility, cost and impact on the network and their customers. Following this process, if after a Notice has been served, a telecommunications operator still has concerns with the content of that Notice, the Notice can be referred back to the Secretary of State for review, who has a duty to consult with the Technical Advisory Board and the Investigatory Powers Commission (IPC).”395

501.The Home Secretary, when asked why the ‘double-lock’ procedure will not be applied to National Security and Technical Capability notices, explained that “the double-lock authorisation is there where there are processes that are intrusive into an individual. When you look at the technical capability and national security notices, those are of a different order. They are not about that question of the intrusion that is taking place into an individual.”396

502.The Committee accepts that National Security and Technical Capability notices are different in scope and intrusion to the types of warrants that will need to be authorised by a Judicial Commissioner. We are therefore content that these notices should be issued by the Secretary of State without reference to a Judicial Commissioner.

Data sharing and Extraterritoriality

503.The draft Bill provides powers for the UK to share information with overseas intelligence and law enforcement agencies, as well as asserting extraterritoriality so that information can be obtained from companies based outside of the UK.

504.The Committee is aware that the Government has been working on implementing the recommendations made by Sir Nigel Sheinwald’s Report. These included:

• Improving government-to-government cooperation
• Reforming the existing US/UK Mutual Legal Assistance Treaty (MLAT) so that issues around timeliness of information sharing can be resolved
• Building a new international framework for intelligence sharing
• Improving transparency around the number and nature of requests to overseas and domestic CSPs.397

505.The Home Secretary wrote to the Committee to provide an update on the Government’s work in this area, saying “We have continued to engage in preliminary discussions with international partners on how such an agreement might operate in principle, based on strong, human rights-compliant domestic regulatory frameworks. In the discussions I have held, there is a consensus about the broad principles behind an agreement, but we are not yet at the stage of any formal negotiations.”398

Safeguards for data sharing overseas

506.A number of witnesses criticised the draft Bill for lacking detail about conditions for sharing information with overseas authorities. Taking as an example Clause 39 which deals with interception in accordance with overseas requests, Amnesty International UK wrote that “it is an extremely broad enabling provision that cannot begin to be sufficiently clear to satisfy the UK’s human rights obligations in this field. It also leaves it open to the Secretary of State to make further Regulations as to conditions to be met for such sharing, without indicating what those might be.”399

507.Other witnesses raised concerns about the lower level of safeguards that apply to sharing data overseas.400 Privacy International said:

“Except for the provisions regulating Mutual Assistance Warrants (that apply only to interception of communications) there is no mention in the IP Bill of the grounds, limits and authorisations required for sharing data obtained through surveillance. In this respect the IP Bill fails to resolve one of the most controversial and concerning practices of UK intelligence agencies, namely receiving and sharing acquired data in ways that are unregulated and may have the effect of circumventing applicable safeguards (notably under the Five Eyes arrangements). If confirmed, this would leave a significant loophole in the new regime regulating the use and oversight of investigatory powers, resulting in significant risks of abuse.”401

508.Amnesty International UK and Privacy International also pointed to a lack of any provisions in the draft Bill regulating the receipt by the UK of material obtained through interception by overseas agencies. Amnesty International UK said that: “Schedule 6 provides at 2(2) a bare statement that Codes of Practice will cover the process for overseas requests and handling data received from them. Not only is this a wholly inadequate provision given the scale of what occurs, it makes no mention whatsoever of communications material received otherwise than through a specific request.”402

509.The Home Secretary explained that “before intercept material is shared with an overseas authority, the issuing authority sharing the material must be satisfied that they have appropriate handling arrangements in place to protect the material, equivalent to those that apply under Clause 40. Those might not be exactly mirrored; they might not be absolutely the same; but they are equivalent, so they give the same degree of appropriate handling arrangements.”403

510.The Committee believes that leaving the decision regarding the propriety of sharing intercept material with an overseas authority to the appropriate issuing authority is not a strong enough safeguard.

511.The Committee would like to see more safeguards for the sharing of intelligence with overseas agencies on the face of the Bill. These should address concerns about potential human rights violations in other countries that information can be shared with. (Recommendation 43)

512.The Committee also recommends that the Bill should make it illegal for UK bodies to ask overseas agencies to undertake intrusion which they have not been authorised to undertake themselves. (Recommendation 44)

Dangers and difficulties of asserting extraterritoriality

513.The Committee has received a large volume of evidence regarding the potential difficulties of asserting extraterritoriality when making demands on communications service providers not based within the UK.

514.Apple Inc. told us that “there will remain a proportion of service providers which will never assist British law enforcement regardless of threatened sanction because they are underground or in jurisdictions unfriendly to British interests. It is to these providers that dangerous people will gravitate.”404 Added to this, Facebook et al. raised the issue that “unilateral assertions of extraterritorial jurisdiction will create conflicting legal obligations for overseas providers who are subject to legal obligations elsewhere.”405 BT suggested that “the introduction of judicial authorisation may persuade some overseas CSPs of the legitimacy of requests for interception.”406

515.Concerns were also expressed about the precedent that this legislation might then set for other countries.407 The Interception of Communications Commissioner’s Office told us that “both UK and overseas businesses may be impacted by other countries following in the footsteps of the UK by adopting similar (but possibly not democratically controlled) investigatory powers regimes, particularly because the UK plays such a leading role in the global digital economy.”408

516.Above all, in respect of extraterritoriality, there appear to be some inconsistencies in the safeguards against unreasonable warrants, the enforceability of different powers, and the circumstances in which the Secretary of State is obliged to consult with CSPs. Yahoo’s submission summarised these variations in a single table, reproduced here.409

Table 2: Extraterritorial jurisdiction powers in the draft Bill

Provision	ETJ applies	Reasonable­ness test	Conflict of laws defence	Enforce­able against overseas CSP	International mutual assistance framework (within scope)	Obligation on SoS to consult CSP
Targeted interception Clause 29(4)	Yes	Yes Clause 31(5)	Yes Clause 31(5)	Yes Clause 31(8)	Yes	No
Targeted acquisition of comms data Clause 69	Yes	Yes Clause 69(4)	Yes Clause 69(4)	Yes Clause 50(4)	Yes	No
Mandatory data retention Clause 79	Yes	Partial410	No411	No	No	Yes Clause 72(2)
Targeted EI Clause 99(3)	Yes	Yes Clause 102(6)	No412	No	No	No
Bulk interception Clause 116(3)	Yes	Yes Clause 116(5)	Yes Clause 116(5)	Yes Clause 116(5)	No	Yes Clause 108(2)
Bulk acquisition of comms data Clause 130(3)	Yes	Yes Clause 130(5)	Yes Clause 130(5)	Ambiguous413	No	No
Bulk EI Clause 145(3)	Yes	Yes Clause 145(4)	No414	No	No	No
Bulk personal data sets Clause 150	No	-	-	-	-	-
Technical capability notice Clause 189	Yes	Partial415	No	Partial416	-	Yes Clause 190(2)

Source: Yahoo

517.While the Committee is grateful for the written evidence it received from Facebook, Google, Microsoft, Twitter, Yahoo and Apple, we were disappointed that all refused to appear before the Committee to answer oral questions. Without this opportunity to cross-examine some of the strong opinions voiced in their written submissions, the Committee finds it difficult to come to a settled view on these issues. It is also difficult to form a view on claims made in some submissions that these extraterritorial elements of the draft Bill will be unenforceable.417

518.We recommend that the Government should give more careful consideration to the consequences of enforcing extraterritoriality. The Government should re-double its efforts to implement Sir Nigel Sheinwald’s recommendations. (Recommendation 45)

Privileged communications

Legal Professional Privilege

519.A number of witnesses expressed concerns as to the potential impact of the draft Bill on legal professional and journalistic privilege and the surveillance of Parliamentarians.418

520.Legal professional privilege (“LPP”) is the right of a client to have “private communication with a lawyer, to obtain legal advice [or for the private provision of] advice and assistance in the course of litigation, whether active or potential”.419 There are no substantive provisions on the face of the draft Bill providing how LPP will apply when a warrant provides for the interception of communications which include those between a lawyer and his or her client. The only specific reference to legally privileged information is in Schedule 6 which requires the Secretary of State to make one or more codes of practice about the exercise of functions conferred by the draft Bill. Schedule 6, paragraph 4 provides that a code of practice about the obtaining or holding of communications data by virtue of Part 3 must include provision about “particular considerations applicable to any data which relates to a member of a profession which routinely holds legally privileged information or relevant confidential information”. The draft Bill does not, however, state how the matter must be addressed or the circumstances in which LPP may be overridden. Additionally, whilst a person must have regard to a relevant code when exercising any functions to which it relates, any failure on their part to comply with the provisions of that code will not of itself make that person liable to civil or criminal proceedings.

521.Witnesses were critical of the draft Bill’s approach. Peter Carter QC (who produced a recent Bar Council paper on the issue of LPP)420 could find no protection for LPP. He did not advocate that all lawyer/client communications should be protected but referred to the Proceeds of Crime Act 2002 which, he explained, makes it clear that communications between a lawyer and a client covered by LPP are immune, but a client asking a lawyer for advice “on where the best place is to stash his stolen loot is not”.421

522.Colin Passmore, who represented the Law Society, told the Committee that RIPA and the Bill were unique in conferring investigatory powers without a provision actively protecting privilege. Mr Passmore argued for the inclusion in the Bill of a specific provision reflecting the law as it stands currently across all other statutes (with the exception of RIPA) and including the iniquity provision so that if a solicitor is trying to commit a crime with their client, that information will not be protected by privilege.422

523.Mr Carter was concerned that the draft Bill would not allow him to reassure a client that discussions on a sensitive (but legitimate) commercial matter would definitely remain confidential. He referred to the “chilling effect” of legislation permitting access to communications, explaining that those practising in criminal law need to build up the confidence of a client so as to give robust advice.423 If the client cannot be confident that the communication will remain confidential he or she may simply say nothing. Although not raised by Mr Carter, the same point might be made in the case of civil lawyers and their clients.

524.Mr Passmore424 and the Law Society of Scotland425 also raised the potential “chilling effect” when referring to the House of Lords’ decision in the McE case.426 Their concerns, shared by Mr Carter,427 arose due to the Lords’ finding that section 27 of RIPA (which uses the same phrase as in clauses 5 and 65 of the draft Bill, “lawful for all purposes”) had the ability to enable the security and intelligence agencies, the police and others to listen in to privileged communications in those circumstances to which the case applied. Mr Passmore told the Committee that the House of Lords had been reluctant to interpret section 27 as it did because its application in this way on a regular basis would create a chilling effect on privilege, inhibiting the frankness of clients to communicate with their lawyers and potentially undermining the right to a fair trial under Article 6 ECHR, infringing privacy rights under Article 8 ECHR, and the administration of justice.428

525.Mr Passmore, Mr Carter, the Bingham Centre for the Rule of Law and Amnesty International UK429 all raised similar concerns about the inclusion of LPP provisions in a code of practice. Mr Passmore considered this to be the “worst option” for dealing with the treatment of LPP, particularly as the codes do not yet exist.430 The Committee was not able to review any codes, although we received assurances from the Home Office that they would reflect existing codes. Mr Passmore also raised the potential weakness of sanctions for a breach of a code not being based on a primary legislative provision, as in the case of both the draft Bill and RIPA.431 By contrast, the codes of practice for the Police and Criminal Evidence Act and the Criminal Justice Act are both underpinned by a primary legislative provision.432

526.The issue of a code was also raised by Mr Carter who pointed out that under Schedule 6 the code would be confined to the powers exercised under part 3 (communications data) and not under any other part of the Bill.433 The Bingham Centre for the Rule of Law suggested that LPP and journalistic privilege should be addressed at the stage that a warrant is considered by a judicial commissioner, suggesting an inter partes hearing if viable or otherwise a hearing with special advocates.434 As well as supporting calls for the provisions on LPP and other privileged materials to be included on the face of the Bill, Amnesty International UK also pressed for protection of the communications of NGOs like itself dealing when with sensitive cases involving human rights abuses.435

527.Mr Passmore told the Committee that it was the Law Society’s view that, unless the Bill was amended so as to deal with privilege on its face, the concept would begin to become seriously undermined. He went on to point out that LPP rights are “current and … important” and that they are “important for the confidence of citizens in the administration of justice”..436

528.Mr Carter told the Committee that if LPP is not recognised as a privilege that needs to be protected, “it strikes at the heart of our judicial system.”437 JUSTICE raised similar concerns, including the lack of a specific provision addressing LPP on the face of the draft Bill, the lack of draft codes of practice to review and their limited application to communications data only.438

529.The Home Office’s view on the Bill’s treatment of LPP was put forward by Paul Lincoln, who referred to possible attempts by people to abuse the privileges available to them and explained that there was, therefore not a complete bar on such activity in terms of interception.439 The Home Office clarified this statement, explaining that the policy intent is to make clear that special considerations apply to legally privileged material and to recognise the importance of LPP with additional safeguards set out in codes of practice. It is in the nature of the intercepting agencies’ work that they will sometimes legitimately need to intercept communications between people and their lawyers in the interests of preventing or investigating serious crime or terrorist activity.440

530.The Home Office further explained that the draft Bill and the accompanying Codes of Practice will build on provisions in current legislation to balance the privacy of clients and patients of lawyers and doctors with the ability of law enforcement and the security and intelligence agencies to investigate wrongdoers in a manner which is not unduly fettered.441 It acknowledged that the privilege attached to the contents of communications between lawyer and client is important and must be protected but stated also that in the course of investigations into serious criminals and terrorists, law enforcement and the security and intelligence agencies will sometimes need to intercept communications between suspects and their lawyers.442

531.The additional safeguards that apply to legally privileged communications are to be set out in draft codes of practice building on existing safeguards.443 They include:

• a presumption of LPP unless the contrary is established;
• where acquiring communications subject to LPP is likely, this should be made clear in the warrant application and reasonable steps taken to minimise access to the communications subject to LPP;444
• where the intention is to acquire legally privileged communications, there must be exceptional and compelling circumstances which make this necessary;
• before selecting for examination material intercepted under a bulk interception warrant which is likely to include legally privileged material, an enhanced internal authorisation procedure must be followed.445

532.A lawyer may only be the subject of an interception/equipment interference operation in exceptional and compelling circumstances and the Home Office evidence refers to various safeguards which will be included in the code of practice. For example, material identified as legally privileged should be marked as such and only retained if necessary and proportionate and must be safeguarded from becoming available to any person whose possession of it might prejudice any criminal or civil proceedings. The acquisition and retention of legally privileged material must be reported to the relevant Commissioner. The Interception of Communications Code of Practice made under RIPA (the substance of which will, the Home Office told the Committee, be replicated under the new legislation446) states that a lawyer will only be targeted in exceptional and compelling circumstances.

533.The importance of Article 8 ECHR is explained in paragraph 22 of this report. Article 8 applies in the case of communications which attract LPP and it is clear that the ECtHR views such communications as deserving of particular protection. It has held that special procedural safeguards should apply in the case of a search warrant executed at a lawyer’s office.447 The precise scope of additional protections which should apply in the case of interception of documents has not been fully argued before the European Court of Human Rights but in Kopp v Switzerland the Court held that tapping a lawyer’s telephone as part of a wider investigation into corruption was not in accordance with the law because no distinction was made between communications which would attract privilege and those which would not.448 On the other hand a system of tapping which did provide protections to preserve the confidentiality of lawyer/client communications attracted the Court’s approval.449 This raises the question of whether the provisions in the draft Bill provide a sufficient level of protection for LPP in so far as the ECtHR views Article 8’s requirements or whether an amendment providing additional protection is necessary.

534.The Committee is concerned that the Bill as drafted only provides (through a proposed code of practice relating to Part 3 of the Bill) for the application of LPP in the case of communications data (despite the information provided by the Home Office which suggests provisions of the code will relate to acquisition of other material).

535.The Committee is further concerned that there are no substantive provisions addressing LPP even in the case of communications data on the face of the Bill and considers that this may call into question the application of LPP when the Bill’s powers are exercised, particularly given the judgment in McE and the inclusion of specific provisions in other legislation conferring investigatory powers. Additionally, the lack of a draft code prevents the Committee scrutinising provisions on an important matter.

536.The Committee notes the Home Office’s concerns about potential abuse of privileges by either lawyers or their clients.

537.The Committee recommends that provision for the protection of Legal Professional Privilege (LPP) in relation to all categories of acquisition and interference addressed in the Bill should be included on the face of the Bill and not solely in a code of practice. The Government should consult with the Law Societies and others as regards how best this can be achieved. (Recommendation 46)

538.The Home Office should review its proposals in relation to LPP to ensure that they meet the requirements of Article 8 and relevant case law. (Recommendation 47)

Journalistic Privilege

539.A number of witnesses raised concerns about the level of protection which the Bill provides for journalistic privilege. In particular, it was pointed out that the Bill dilutes the protections presently provided by the Police and Criminal Evidence Act 1984 (PACE) and the Terrorism Act 2000. Again, as with LPP, the majority of provisions relating to journalistic privilege will be included in a code of practice and relate solely to communications data. There is one provision, Clause 61 (which again relates solely to communications data), on the face of the Bill which provides that an authorisation for a relevant public authority to identify and confirm the source of journalistic information is not to take effect until approved by a judicial commissioner. This does not apply in the case of the security and intelligence agencies who do not need this approval.

540.The Media Lawyers Association (MLA) explained the present protections available to journalists and their material included in PACE and the Terrorism Act 2000.450 Under PACE where access is required to “journalist material” (material acquired or created for the purposes of journalism) the media source involved (i.e. newspaper etc.) must be provided with certain information, in particular what material is sought, why it is believed to be of substantial value, what other methods of obtaining it have been tried and why it is believed to be in the public interest that the material should be produced or access to it provided. There is also “excluded material” which is very infrequently accessed using PACE but can be obtained under the Terrorism Act 2000 provided that the material is sought for the purposes of a terrorism investigation and the officer has reasonable grounds to believe the material will be of substantial value and should be produced. In the case of both journalistic and excluded material there must be an overriding public interest requiring disclosure and applications must normally be heard by a judge on notice, providing the judge with evidence and argument from both parties and ensuring that the journalist has an opportunity to make a case against disclosure if they feel this is appropriate.

541.Journalists have found themselves without these safeguards in a number of instances where the Police have sought to make use of RIPA provisions which do not require judicial approval for the interception, acquisition and disclosure of communications data and covert and human surveillance. As well as side-stepping the need for judicial approval a number of Police forces also failed to comply with relevant requirements (now contained in the RIPA Acquisition and Disclosure of Communications Data Code of Practice 2015) relating to the authorisation of police activity under RIPA.451

542.The MLA raised Articles 10 and 6 of the European Convention on Human Rights.452 Article 10(1) provides that everyone has the right to freedom of expression which includes freedom to receive and impart information and ideas without interference by public authority. The right is a qualified one: it may be subject to such:

“formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

The MLA suggested that an order requiring the handing over of journalistic material both engages Article 10 ECHR and amounts to an interference under Article 10(1). It will only be justified if it is prescribed by law, proportionate and necessary in view of one of the matters listed in Article 10. Additionally, the MLA suggested that the right to a fair hearing under Article 6 is also engaged and emphasised the importance of inter partes hearings enabling the media to make informed representations before material is accessed or obtained. Whilst such hearings are held under PACE and the Terrorism Act, they are not provided for under either RIPA or under the draft Bill which provide for ex parte applications. This raises the question of compatibility of provisions of the draft Bill with ECHR Articles. Provisions which guaranteed inter partes hearings would help to minimise the risk of arrangements falling foul of Article 6.

543.The MLA acknowledged that the draft Bill gives explicit protection to journalists but was concerned that at the same time it creates a route whereby the state can identify a source without going through PACE protections.453 Further, it expressed concern that Clause 61 deals solely with communications data and there are no specific protections in relation to any other powers of collection and retention. Additionally, it noted, whilst Clause 61 requires that an application relating to communications data be approved by a judicial commissioner, the procedure is linked to proposed codes and not to provisions on the face of the draft Bill. Further, the MLA noted that applications to a judicial commissioner can be made without prior notification to the media organisation involved which would also have no right to contest an application before a judicial commissioner. Additionally, it noted that the draft Bill does not provide a right to source protection and further the ability to obtain data is not limited to specific activities. Finally, it told the Committee it will be possible for those seeking information to evade PACE by using the powers provided by the draft Bill.454

544.The MLA’s concerns were shared by a number of witnesses.455 Andy Smith, representing the National Union of Journalists (NUJ), referred to the system of prior notification which exists under PACE and which offers the opportunity to explain a situation, so that a judge can make a variation of an application made to him (which may lead to the disclosure of less material than is sought), which, the NUJ considered would very difficult under the proposed framework.456 He also said that PACE means that journalists are supplied with sufficient information about an application, for instance what other means have been attempted to obtain the information and a face-to-face hearing enables journalists to demonstrate, particularly to potential sources of information, their commitment to source protection. The draft legislation would not afford a right to appeal for a journalist.

545.In its written submission the NUJ echoed the views set out in its oral evidence, in particular in respect of prior notification of applications for journalistic material.457 Further, it noted that there is no prior right of notification for journalists or media organisations where their material is either deliberately, incidentally, collaterally or accidentally sought or obtained, whether by the police or by intelligence agencies and the proposed measures can be bypassed by using urgency procedures.

546.The NUJ was also concerned (as was the MLA and JUSTICE458) that the police will now start using the draft Bill’s powers routinely to identify sources instead of making PACE/Terrorism Act applications for a journalist’s material as they consider that the draft Bill provides an easier route for the authorities to identify a journalists’ source when it is compared to PACE. It agreed with other witnesses that the production order procedures set out in PACE offer better safeguards and protections than those proposed in the draft Bill. It also argued that the draft Bill’s current proposals would not allow journalists to protect the identity of sources or provide sufficient protections for journalists’ materials and communications (a right recognised by the ECtHR) as laid down in its Code of Conduct.459 This could result in informers being unwilling to speak out and also in journalists being perceived as informers possibly impacting on their safety in certain instances. It also noted that the proposed oversight will only apply for the purpose of an application to identify a journalistic source and the judicial authorisation set out in the draft Bill will only cover the police and not the security and intelligence agencies.460 The Union was also concerned by the broad nature of powers on “equipment interference” and the access which they will provide for authorities. The NUJ concluded that the draft Bill needs better safeguards and not just in the section relating to the interception of communications data.461

547.Guardian News and Media referred to the public interest role of newspapers in ensuring continual oversight and accountability of public and private institutions.462 It shared concerns that the draft Bill creates a route by which information can be accessed without compliance with the safeguards as set out in PACE. It argued that the Bill does not go far enough in giving explicit protection to journalists and that Clause 61 and the requirement that statutory Codes of Practice be issued in respect of communications data must make provision for additional safeguards for sensitive professions. It also expressed concern as to the assessment which would be made by a judicial commissioner stating that it would be no more than a “review of a police decision, already taken, against an extremely broad standard”.463

548.The News Media Association (NMA) also felt that the draft Bill would not ensure adequate protection for freedom of expression as it does not provide sufficient substantive or procedural protections for press freedom.464 The draft Bill would, in its view, “enshrine sweeping powers affecting journalists and their sources, leaving unchanged other RIPA surveillance powers used against the press”. It would, it considered, allow the relevant authorities to evade satisfaction of the stringent tests necessary for proper safeguard of press freedom and would also continue to permit the police to bypass the statutory protections laid down in PACE and the Terrorism Act 2000.465 The draft Bill should, it suggested, contain provisions akin to PACE, allowing prior notification and challenge of applications as well as stronger conditions for grant of an application and a right of speedy media appeal.

549.In NMA’s view there is a need for “comprehensive and stronger safeguards than those found in draft Bill” as otherwise the relevant authorities would still be able to make unwarranted use of the powers relating to intrusive and covert surveillance under RIPA 2000 and all the powers governed by the draft Bill including interception of communications; obtaining of communications data and of equipment interference.466 It explained that these powers could be used for tracking individual journalists, investigative teams, the entire editorial staff of media organisations and the subject, progress, course and content of their investigations including outside sources and confidential sources. The provisions permit access, accumulation and sifting of journalistic information gathered, with the risk of its use or disclosure for other purposes.

550.In the case of the proposed codes relating to the exercise of the other powers under the Bill against journalists, NMA made the point that RIPA surveillance codes have proved inadequate protection to date. It went on to suggest that the role of the Judicial Commissioner does not allay media concerns in view of the judicial review test which a Commissioner is to apply (see paras 422–433). NMA’s view was that this does not enable a rigorous test of an application’s merit. The Minister and the Judicial Commissioner’s evaluations will not benefit from hearing media challenge and contradiction of the applicants’ assertions and/or of Ministerial acquiescence. Further, NMA noted that the judicial commissioner is only to apply the principles of judicial review to the Ministerial consent. This, it was suggested, does not enable “rigorous test of the applications’ merit”.467

551. NMA’s view was representative of that of other journalistic witnesses: “Clause 61 must be improved, but this must be in conjunction with the addition of other clauses introducing the PACE type press freedom protections and procedures necessary in relation to all applications and use of powers under the RIPA and IP legislation”.468 In the case of the proposed codes relating to the exercise of the other powers under the Bill against journalists NMA made the point that RIPA surveillance codes have proved inadequate protection to date. The Minister and the Judicial Commissioner’s evaluations will not benefit from hearing media challenge and contradiction of the applicants’ assertions and/or of Ministerial acquiescence.

552.Issues were raised over the definition of journalists. This was highlighted by Andy Smith from the NUJ who said “I have seen various definitions. The advantage of PACE is that it does not define a journalist, and in some ways that is safer… Frankly, some very good journalistic work is being done on the internet by people who are not associated with the traditional media outlets. There is a debate to be had there, but I would say it is developing.”469

553.The Committee considers that protection for journalistic privilege should be fully addressed by way of substantive provisions on the face of the Bill.

554.The Committee recommends that the Home Office should reconsider the level of protection which the Bill affords to journalistic material and sources. This should be at least equivalent to the protection presently applicable under PACE and the Terrorism Act 2000. (Recommendation 48)

555.The Committee recommends that if Clause 61 remains in its present form the Bill should make it clear that RIPA and Clause 61 do not act so as to enable the investigatory authorities to avoid the application of PACE or the Terrorism Act and the ability they afford to media to know about an application for communications data and make representations as to the proposed acquisition. (Recommendation 49)

556.The Home Office should review Clause 61 to ensure that it meets the requirements of Article 10 ECHR. (Recommendation 50)

Parliamentary Privilege

557.The Bill contains a specific provision addressing an application for a targeted interception or examination warrant in the case of a person who is a member of a relevant legislature (which includes members of the Houses of Parliament, as well as members of the devolved Parliaments and Assemblies and the European Parliament). Before the Secretary of State authorises such a warrant she or he must consult the Prime Minister.

558.Additionally, Schedule 6 of the draft Bill provides for a code of practice about the exercise of functions under Part 3 of the draft Bill (i.e. in relation to communications data). The code must include provision about particular considerations applicable to any data which relates to, inter alia, MPs on the basis that they enter into communications with their constituents. The precise meaning of this provision is not clear partly as the relevant code does not presently exist but it will only apply to communications data related to communications between MPs and their constituents.

559.The draft Bill does not enshrine in law what is known as the “Wilson doctrine” which provides for the interception of the communications of MPs and further provides that any change in the policy of interception will be made known to MPs at such moment as seems compatible with the security of the country.

560.David Davis MP suggested that he would remove the role of the Prime Minister in the interception of politicians’ communications as he was uneasy about a politician deciding on whether or not to tap a politician’s phone.470 Additionally the draft Bill refers to MPs and their constituents which he considered to be probably the least interesting to the agencies of an MP’s communications. He suggested that communications with whistleblowers and journalists would be likely to be of more interest. Further, he noted that communications data is not subject to the Wilson Doctrine even though it has become more significant in recent years.471

561.Dr Andrew Defty of Lincoln University suggested that legislation relating to the interception of communications passed since the 1980s means that the Wilson Doctrine is now out of step with the current statutory framework and that the draft Bill provides an opportunity to place the Doctrine on a statutory footing, if the intention is that the communications of parliamentarians should be treated differently to those of other members of the public.472 He suggested that this could have been achieved by a process where the Prime Minister informed the ISC (or its chair) if a warrant were issued to intercept the communications of a member of a relevant legislature. He noted the draft Bill’s extension of protections to members of other legislatures.473

562.Professor Christopher Forsyth, when asked about the safeguard of Prime Ministerial approval under Clause 16, suggested that whilst it was understandable that individual MPs of one party might not believe that the Prime Minister is much of a safeguard when he belongs to a directly opposed party, the judicial commissioner is there to see that there is no skulduggery in the approval of the warrant and if the judicial commissioner refuses, it is not going to get to the Prime Minister.474 He went on to add that the precise mechanics of how Clause 16 would work are not clear. It may be that review by a judicial commissioner is necessary before the Prime Minister’s approval is sought but the sequence of events is not spelt out in the Clause.

563.The Home Secretary was asked why the Wilson Doctrine is not enshrined in the Bill and why the Bill does not require the Prime Minister to make a declaration to Parliament.475 She explained that the IPT had recently found that the Wilson Doctrine was still in place and that the definition of it was as she had set out to the House of Commons.476 She went on to add that the most important element of the Doctrine is included in the Bill. This is the a requirement, where it is suggested that there be interception in relation to, not just a Member of Parliament but Members of the House of Lords, UK MEPs and Members of the devolved assemblies and parliaments, for the Prime Minister to be consulted on the use of the interception power. Further, she suggested that the Prime Minister had made it clear that the aspect of the Wilson Doctrine dealing with the Prime Minister making a statement to the House when policy changed in relation to the Doctrine still applied. But she did not think it appropriate to put that element of the Doctrine on the face of a piece of primary legislation. The Home Secretary suggested that there may be some misunderstanding about the statement to Parliament that the Prime Minister makes. She explained that the statement would be about any change of policy governing the interception of MPs, not that there has been an instance of such interception. Generally, she explained, statements about changes of policy on a whole range of matters are regularly made to Parliament. No requirement for the Government to do make these statements is on the face of any legislation.477

564.The Committee considers that the approach taken in the Bill to surveillance of Parliamentarians strikes an effective balance between the need for Parliamentarians to be able to communicate fully and frankly with their constituents and other relevant third parties and the needs of the security and intelligence agencies and law enforcement agencies.

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322 HC Deb, 4 November 2015, col 969

323 HC Deb, 4 November 2015, col 973

324 Written evidence from Peter Gill (IPB0008)

325 Written evidence from Lord Carlile of Berriew CBE QC (IPB0017)

326 Q 96 (Owen Paterson MP)

327 Q 97 (Lord Blunkett)

328 See, for example, written evidence from Big Brother Watch (IPB0007), Mr Ray McClure (IPB0016), Article 19 (IPB0052), Bingham Centre for the Rule of Law (IPB0055), Dr Glyn Moody (IPB0057), Amnesty International UK (IPB0074), Paul Biggs (IPB0084), Privacy International (IPB0120), Law Society of Scotland (IPB0128), Liberty (IPB0143) and JUSTICE (IPB0148)

329 Written evidence from Big Brother Watch (IPB0007)

330 Q 250 (Sir Bruce Robertson)

331 Q 68 (David Anderson QC)

332 See Clauses 19(2), 90(2), 109(2), 123(2), 138(2), 155(2)

333 See, for example, written evidence from Peter White (IPB0004), Big Brother Watch (IPB0007), News Media Association (IPB0012), Giuseppe Sollazzo (IPB0032), Krishan Bhasin (IPB0034), the Chartered Institute of Legal Executives (IPB0041), Ms Susan Morgan (IPB0043), Dr Andrew Defty (IPB0050), Article 19 (IPB0052), the Bingham Centre for the Rule of Law (IPB0055), Dr Glyn Moody (IPB0057), Open Intelligence (IPB0066), Mr. Bernard Keenan, Dr. Orla Lynskey, Professor Andrew Murray (IPB0071), the Information Commissioner’s Office (IPB0073), Amnesty International UK (IPB0074), BCS, The Chartered Institute for IT (IPB0075), techUK (IPB0088), Cian C Murphy and Natasha Simonsen (IPB0096), Chartered Institute of Library and Information Professionals (IPB0104), The Law Society (IPB0105), Open Rights Group (IPB0108), Center for Democracy & Technology (IPB0110), Dr Christian Heitsch (IPB0111), Facebook Inc., Google Inc., Microsoft Corp., Twitter Inc. and Yahoo Inc. (IPB0116), Privacy International (IPB0120), Human Rights Watch (IPB0123), Dr Julian Huppert (IPB0130), GreenNet (IPB0132), Bar Council (IPB0134), Equality and Human Rights Commission (IPB0136), McEvedys Solicitors & Attorneys Ltd (IPB0138), Liberty (IPB0143), BT (IPB0151) and Yahoo (IPB0155)

334 Written evidence from Article 19 (IPB0052)

335 Q 190 (Matthew Ryder QC)

336 Written evidence from Dr Tom Hickman (IPB0039)

337 Q 53 (Lord Judge)

338 Q 53 (Sir Stanley Burnton)

339 Q 9 (Paul Lincoln, Home Office)

340 Q 273 (Theresa May MP)

341 Q 190 (Matthew Ryder QC)

342 Q 217 (Professor Christopher Forsyth)

343 Written evidence from the News Media Association (IPB0012)

344 For example, written evidence from the Bingham Centre for the Rule of Law (IPB0055) and Amnesty International UK (IPB0074)

345 Written evidence from Dr Tom Hickman (IPB0039)

346 For example, written evidence from Big Brother Watch (IPB0007), Dr Tom Hickman (IPB0039), Amnesty International UK (IPB0074), Open Rights Group (IPB0108), Privacy International (IPB0120), the Law Society of Scotland (IPB0128), Dr Julian Huppert (IPB0130), JUSTICE (IPB0148) and Yahoo (IPB0155)

347 Written evidence from Open Rights Group (IPB0108)

348 Q 275 (Theresa May MP)

349 Written evidence from the Mental Welfare Commission for Scotland (IPB0029)

350 Written evidence from the Law Society of Scotland (IPB0128)

351 Written evidence from the Mental Welfare Commission for Scotland (IPB0029)

352 Written evidence from the Home Office (IPB0159)

353 Written evidence from the Interception of Communications Commissioner’s Office (IPB0101)

354 Written evidence from the Information Commissioner’s Office (IPB0073)

355 Q 276 (Theresa May MP)

356 Home Office, Equipment Interference Draft Code of Practice, November 2015

357 Written evidence from Open Intelligence (IPB0066). See, also, written evidence from Electronic Frontier Foundation (IPB0119) and Liberty (IPB0143).

358 See Clauses 20 and 91

359 Written evidence from News Media Association (IPB0012)

360 Written evidence from Access Now et al. (IPB0109)

361 For example, written evidence from the Bingham Centre for the Rule of Law (IPB0055), Amnesty International UK (IPB0074), Privacy International (IPB0120) and the Bar Council (IPB0134) and Q 175 (Baroness Jones of Moulescoomb)

362 Written evidence from the Bar Council (IPB0134)

363 Written evidence from Amnesty International UK (IPB0074)

364 Written evidence from Privacy International (IPB0120)

365 Written evidence from Facebook Inc., Google Inc., Microsoft Corp., Twitter Inc. and Yahoo Inc. (IPB0116)

366 Written evidence from the Home Office (IPB0159)

367 Written evidence from Matthew Ryder QC (IPB0142)

368 Written evidence from the Network for Police Monitoring (Netpol) (IPB0087)

369 Written evidence from the Center for Democracy & Technology (IPB0110)

370 Written evidence from Liberty (IPB0143)

371 Q 276 (Theresa May MP)

372 For example, written evidence from Dr Paul Bernal (IPB0018), Article 19 (IPB0052), Open Intelligence (IPB0066), Dr Richard Clayton (IPB0085), Chartered Institute of Library Information Professionals (IPB0104), Open Rights Group (IPB0108), Center for Democracy & Technology (IPB0110), Privacy International (IPB0120), Human Rights Watch (IPB0123), Liberty (IPB0143) and Virgin Media (IPB0160)

373 Written evidence from Scottish PEN (IPB0076)

374 Written evidence from EE (IPB0139)

375 Written evidence from LINX (IPB0097)

376 Q 72 (David Anderson QC)

377 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, Executive summary, paras 25–27

378 Written evidence from the Local Government Association (LGA), National Anti-Fraud Network (NAFN), Chartered Trading Standards Institute and Association of Chief Trading Standards Officers (IPB0051)

379 The Interception of Communications Commissioner, Report of the Interception of Communications Commissioner ,March 2015, Para 7.10

380 Written evidence from the Local Government Association (LGA), National Anti-Fraud Network (NAFN), Chartered Trading Standards Institute and Association of Chief Trading Standards Officers (IPB0051)

381 Written evidence from Trading Standards North West (IPB0092)

382 Written evidence from the Serious Fraud Office (IPB0153)

383 Written evidence from the Interception of Communications Commissioner’s Office (IPB0101)

384 Written evidence from Virgin Media (IPB0160)

385 Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform (see Appendix 3)

386 Ibid.

387 Ibid.

388 For example written evidence from BCS, The Chartered Institute for IT (IPB0075), Global Network Initiative (IPB0080), The Institute for Human Rights and Business (IPB0094), Access Now et al. (IPB0109), Dr Christian Heitsch (IPB0111), Privacy International (IPB0120), Human Rights Watch (IPB0123), Bar Council (IPB0134), McEvedys Solicitors and Attorneys Ltd (IPB0138), and JUSTICE (IPB0148)

389 JUSTICE (IPB0148)

390 Written evidence from Dr Tom Hickman (IPB0039)

391 Written evidence from Mr Eric King (IPB0106)

392 See Clauses 188 and 189

393 Written evidence from Facebook Inc., Google Inc., Microsoft Corp., Twitter Inc. and Yahoo Inc (IPB0116) and Virgin Media (IPB0160)

394 Written evidence from Human Rights Watch (IPB0123)

395 Written evidence from EE (IPB0139)

396 Q 277 (Theresa May MP)

397 Cabinet Office, Summary of the Work of the Prime Minister’s Special Envoy on Intelligence and Law Enforcement Data Sharing—Sir Nigel Sheinwald, 25 June 2015

398 Written evidence from Theresa May MP (IPB0165)

399 Written evidence from Amnesty International UK (IPB0074)

400 See, for example, written evidence from Amnesty International UK (IPB074), Mr Eric King (IPB0106), Open Rights Group (IPB0108) and the Equality and Human Rights Commission (IPB0136)

401 Written evidence from Privacy International (IPB0120)

402 Written evidence from Amnesty International UK (IPB0074)

403 Q 278 (Theresa May MP)

404 Written evidence from Apple Inc. and Apple Distribution International (IPB0093)

405 Written evidence from Facebook Inc., Google Inc., Microsoft Corp., Twitter Inc. and Yahoo Inc. (IPB0116). See also written evidence from Professor Andrew Woods (IPB0114)

406 Written evidence from BT (IPB0151)

407 For example, written evidence from Ms Susan Morgan (IPB0043), Global Network Initiative (IPB0080), techUK (IPB0088), Apple Inc. and Apple Distribution International (IPB0093), the Interception of Communications Commissioner’s Office (IPB0101), Facebook Inc., Google Inc., Microsoft Corp., Twitter Inc. and Yahoo Inc. (IPB0116), Privacy International (IPB0120), Human Rights Watch (IPB0123) Liberty (IPB0143), Yahoo (IPB0155)

408 Written evidence from the Interception of Communications Commissioner’s Office (IPB0101)

409 Written evidence from Yahoo (IPB0155)

410 There’s no explicit reasonableness test in this section but Clause 72(1) cover some of this ground.

411 Confusing as there is no explicit offence for failure to comply.

412 Confusing as there is no explicit offence for failure to comply.

413 Clause 130(6) could be aimed at UK CSPs only or also include local subsidiaries of overseas CSPs.

414 Confusing as there is no explicit offence for failure to comply.

415 Clause 130(3) is limited to technical feasibility and cost, not broader “reasonably practicable” test as in Clause 31.

416 If the notice relates to an enforceable power, then the notice is also enforceable—see Clause 190(10) and 190(11).

417 See, for example, written evidence from BCS, The Chartered Institute for IT (IPB0075), Trading Standards North West (IPB0092), and Virgin Media (IPB0160)

418 See, for example, written evidence from the Bar Council (IPB0134), the Law Society of England and Wales (IPB0105), the Law Society of Scotland (IPB0128), the Odysseus Trust (IPB0030), Martin Chamberlain QC (IPB0133), McEvedys Solicitors & Attorneys Ltd (IPB0138), the National Union of Journalists (NUJ) (IPB0078) and the Media Lawyers Association (IPB0010)

419 Q 196 (Peter Carter)

420 Q 196 (Peter Carter)

421 Ibid.

422 Q 139 (Colin Passmore)

423 Q 196 (Peter Carter QC)

424 Q 137 (Colin Passmore)

425 Q 137 (Tim Musson)

426 House of Lords, In re McE, M, C and another, [2009] UKHL 15

427 Q 196 (Peter Carter QC)

428 Q 137 (Colin Passmore)

429 Written evidence from the Bingham Centre for the Rule of Law (IPB0055) and Amnesty International UK (IPB0074)

430 Q 141 (Colin Passmore)

431 Ibid.

432 Ibid.

433 Q 196 (Peter Carter)

434 Written evidence from the Bingham Centre for the Rule of Law (IPB0055)

435 Written evidence from Amnesty International UK (IPB0074)

436 Q 139 (Colin Passmore)

437 Q 196 (Peter Carter)

438 Written evidence from JUSTICE (IPB0148)

439 Q 15 (Paul Lincoln) (as clarified by the Home Office)

440 Ibid.

441 Written evidence from the Home Office (IPB0146)

442 Ibid.

443 Ibid.

444 The reference here to a “warrant application” seems to suggest that the Code will address more than communications data as an authorisation is required in this case rather than a warrant. The same point arises in relation to the references to bulk interception warrants and equipment interference warrants. The wording used by the Home Office suggests protection for more than communications data.

445 The following Codes of Practice made under RIPA exist: Interception of Communications Code of Practice 1916, Equipment Interference Code of Practice 2016, Codes of Practice for the Acquisition, Disclosure and Retention of Communications Data 2015, Covert Surveillance and Covert Human Intelligence Sources Code of Practice 2014, Code of Practice for the Investigation of Protected Electronic Information 2010.

446 Written evidence from the Home Office (IPB0146)

447 European Court of Human Rights, Niemietz v Germany, (1993) 16 EHRR 97

448 European Court of Human Rights, Kopp v Switzerland, (1999) 27 EHRR 91

449 European Court of Human Rights, Kruslin v France, (1990) 12 EHRR 547 and Huvig v France, (1990) 1 EHRR 528

450 Written evidence from the Media Lawyers Association (IPB0010)

451 Written evidence from the Media Lawyers Association (IPB0010) and JUSTICE (IPB0148)

452 Written evidence from the Media Lawyers Association (IPB0010)

453 Ibid.

454 Ibid.

455 See, for example, Q 140, 142 (Bob Satchwell, Society of Editors)

456 Q 142 (Andy Smith, National Union of Journalists)

457 Written evidence from the National Union of Journalists (IPB0078)

458 Written evidence from the Media Lawyers Association (IPB0010) and JUSTICE (IPB0148)

459 Q 144 (Andy Smith, National Union of Journalists)

460 Written evidence from the National Union of Journalists (NUJ) (IPB0078)

461 Ibid.

462 Written evidence from Guardian News & Media (IPB0040)

463 Ibid.

464 Written evidence from News Media Association (IPB0012)

465 Ibid.

466 Ibid.

467 Ibid.

468 Ibid.

469 Q 143 (Andy Smith, National Union of Journalists)

470 Q 185 (David Davis MP)

471 Ibid.

472 Written evidence from Dr Andrew Defty (IPB0050)

473 Ibid.

474 Q 221 (Professor Christopher Forsyth)

475 Q 280 (Theresa May MP)

476 HC Deb, 19 October 2015, col 700

477 Q 280 (Theresa May MP)

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